Holder defends alleged hacker's prosecution

3/6/13 2:45 PM EST

Attorney General Eric Holder on Wednesday defended the Justice Department's prosecution of alleged computer hacker Aaron Swartz, who committed suicide in January as he faced trial for copying nearly five million academic articles from a subscription database.

Under questioning from Sen. John Cornyn (R-Texas) at a wide-ranging Judiciary Committee hearing, Holder said critics were paying too much attention to the charges Swartz was indicted on and not enough to the repeated offers prosecutors made to resolve the case in exchange for a guilty plea and a jail term of a few months.

"Does it strike you as odd the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million-dollar fines and then offer him a three or four-month prison sentence?" Cornyn asked the attorney general.

"I think that’s a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was," Holder replied. "I think what those prosecutors did in offering three, four, zero-to-six [months] was consistent with that conduct."

The initial federal charges against Swartz filed in July 2011 consisted of four felony counts: wire fraud, computer fraud, illegally accessing a computer and recklessly damaging a computer. A superseding indictment filed in September 2012 expanded the charges to 13 felony counts of the same offenses, stemming from Swartz's alleged installation of a laptop in closet at the Massachusetts Institute of Technology in Cambridge, Mass.

"So, you don’t consider this a case of prosecutorial overreach or misconduct?" Cornyn asked.

"No. I don’t look at what necessarily was charged as much as what was offered in terms of how the case might have been resolved," Holder said.

Cornyn, a former Texas attorney general, clearly disagreed and suggested that stacking up a large number of felony charges in the case seemed intended at coercing Swartz to plead guilty rather than take the matter before a jury.

"I would suggest to you if you’re an individual American citizen and you’re looking at criminal charges being brought by the United States government with all of the vast resources available to the government, it strikes me as disproportionate and one that is basically being used inappropriately to try to bully someone into pleading guilty to something that strikes me as rather minor," the Texas senator said.

Swartz's lawyers have said that prosecutors on the case insisted on their client pleading guilty to a felony and doing some time behind bars. Swartz, one of the creators of Reddit and an organizer of campaigns against federal anti-web-piracy laws, was 24 at the time of his indictment and 26 when he hanged himself in his Brooklyn, N.Y apartment earlier this year.

Cornyn said the case reminded him of the Justice Department's treatment of the late Sen. Ted Stevens (R-Alaska), who was tried and convicted in 2008 on charges he lied on financial disclosure forms. His conviction was overturned at Holder's request in 2009 after the attorney general concluded that evidence was improperly withheld from Stevens's defense. Stevens, who was defeated at the polls after his initial connection, died in a plane crash the following year.

"I'm concerned that average citizens, if you can call them that, like Aaron Swartz, people who don’t have status or power, perhaps, in dealing with the federal government, could be bullied," Cornyn said. "Obviously we've seen members of the United StatesSenate have been on the receiving end of prosecutorial misconduct."

Holder said he did not see any misconduct on the part of Swartz's prosecutors, but would not hesitate to act in such cases as he did with Stevens's case.

"I respect that. Unfortunately, in both these cases, both of these men are deda and it’s hard to make recompense to someone after they're dead," Cornyn said.

At the outset of the exchange, Holder said he thought Swartz faced a "good future," notwithstanding the risk he was facing of conviction on multiple felony counts.

"Mr. Swartz’s death was a tragedy. My sympathy goes out to his family and to his friends, those who were close to him. It’s a terrible loss. He was obviously a very bright young man and had I think a good future in front of him," the attorney general said.